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1 JOHN M. NEUKOM (CA Bar No. 275887) johnneukom@quinnemanuel.com 2 ANDREW M. HOLMES (CA Bar No. 260475) drewholmes@quinnemanuel.

com 3 ALICIA VEGLIA (CA Bar No. 291070) aliciaveglia@quinnemanuel.com 4 QUINN EMANUEL URQUHART & SULLIVAN, LLP 50 California Street, 22nd Floor 5 San Francisco, California 94111 Telephone: (415) 875-6600 6 Facsimile: (415) 875-6700 7 Attorneys for Plaintiff FORTINET, INC. 8 9 10 11 12 FORTINET, INC., a corporation, 13 Plaintiff, 14 vs. 15 SOPHOS, INC., a corporation, and 16 MICHAEL VALENTINE, an individual, 17 18 19 20 21 22 23 24 25 26 27 28 1
COMPLAINT

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION Case No. 5:13-cv-05831 COMPLAINT FOR PATENT INFRINGEMENT, BREACH OF CONTRACT, AND INTENTIONAL INTERFERENCE WITH CONTRACT DEMAND FOR JURY TRIAL

Defendants.

Plaintiff Fortinet, Inc. (Fortinet) hereby alleges for its Complaint against Defendants

2 Sophos, Inc. (Sophos) and Michael Valentine (Valentine) on personal knowledge as to its own 3 actions and on information and belief as to the actions of Sophos, Valentine, and third parties as 4 follows: 5 6 1. INTRODUCTION Fortinet brings this action against Sophos and Valentine to seek remedies for the

7 repeated and ongoing violationsby Sophos and Valentineof Fortinets legal rights. This 8 includes Sophos infringement of United States Patent Nos. 7,698,744, 8,069,487, and 8,195,938 9 (collectively, the Asserted Patents). This also includes the wrongful conduct of Sophos and 10 Valentine with respect to Fortinets contractual and common-law entitlements. 11 12 2. PARTIES Fortinet is a Delaware corporation with a principal place of business at 1090 Kifer

13 Road, Sunnyvale, California 94086. Fortinet is a leading provider of network security appliances 14 and services, and a market leader in unified threat management systems. 15 3. Defendant Sophos is a Massachusetts corporation having its principal place of

16 business in the United States at 3 Van de Graaff Drive, Second Floor, Burlington, Massachusetts 17 01803. 18 4. Defendant Valentine is an individual who was previously employed by Fortinet,

19 and is now employed by Sophos as the Senior Vice President, Worldwide Sales of Sophos, as 20 alleged in greater detail below. Valentine lives and works in this District. On information and 21 belief, Valentine maintains his primary residence in Los Gatos, California. 22 23 5. JURISDICTION AND VENUE This is an action for patent infringement arising in part under the patent laws of the

24 United States, codified at 35 U.S.C. 1, et seq. This Court has subject matter jurisdiction over 25 this action pursuant to 28 U.S.C. 1331 and 1338(a). 26 6. This Court has supplemental jurisdiction over Fortinets state law claims pursuant

27 to 28 U.S.C. 1367. The federal and state claims alleged herein are so related that they form part 28 1
COMPLAINT

1 of the same case or controversy. Judicial economy, convenience, and fairness to the parties will 2 result if this Court asserts jurisdiction over the state claims. 3 7. This Court has personal jurisdiction over Sophos. On information and belief,

4 Sophos has transacted business in this District, contracted to supply goods or services in this 5 District directly or through its agents, has offered for sale, sold and/or advertised its products and 6 services in the this District, and has otherwise purposely availed itself of the privileges and 7 benefits of the laws of the State of California. In addition, this Court has jurisdiction over Sophos 8 because Sophos has committed acts of patent infringement during the course of its business in this 9 District. In addition, as alleged below, Sophos currently employees 1+ individuals in this District 10 and is therefore physically present here, has poached 1+ individuals in this District from the 11 employment of Fortinet, and has induced 1+ individuals in this District to breach contractual 12 agreement(s) with Fortinet. Furthermore, Sophos maintains systematic, ongoing business

13 operations inside this District, including a physical presence inside this District. By way of 14 example, Sophos currently lists numerous job openings inside this District on its own web site, 15 including an opening for a Channel Manager West Coast with a Location defined as Santa 16 Clara, California. Sophos is currently advertising a job opening for an Enterprise Account 17 Executive Northern California with a Location defined as San Francisco, California. 18 Sophos is currently advertising a job opening for an Office Administrator with a Location 19 defined as Santa Clara, California, and with a job description that indicates that Sophos 20 maintains at least one permanent office inside this District, given that the Main Duties include 21 Greeting and directing visitors and Issuing visitor badges. According to the web site for the 22 California Secretary of State, Sophos has a California business entity number, and maintains an 23 agent for service of process inside California. 24 8. This Court has personal jurisdiction over Valentine because he maintains his

25 primary residence in this District. 26 27 1391. 28 2


COMPLAINT

9.

Venue is proper in this District pursuant to 28 U.S.C. 1400(b) and 28 U.S.C.

1 2 10.

INTRADISTRICT ASSIGNMENT This is an intellectual property action exempt from intradistrict assignment under

3 Civil Local Rule 3-2(c), which makes this action subject to assignment on a district-wide basis. 4 5 11. FACTUAL BACKGROUND Founded in 2000, Fortinet is a leader and worldwide provider of innovative

6 network security appliances and unified threat management solutions. Fortinets products and 7 subscription services provide broad, integrated and high-performance protection against security 8 threats while simplifying IT security infrastructures. Fortinet is a pioneer in the creation of 9 Unified Threat Management (UTM) security systems, which enable secure business 10 communications. Fortinets Fortigate systems detect and eliminate the most damaging, content11 based threats from email and web traffic without degrading network performance. By integrating 12 the industrys broadest suite of security protections, Fortigate systems allow Fortinet customers to 13 obtain the most comprehensive UTM solutions. Fortinet is now the worlds leading provider of 14 UTM security systems, with over 20,000 customers worldwide. Fortinet is headquartered in 15 Sunnyvale, California, with customer support, development, and sales facilities located throughout 16 the world. 17 12. Fortinet has expended substantial resources researching and developing its patented

18 technologies, technical strategies, and business plans related to its security products and services 19 through the expenditure of considerable employee work hours and company resources. This 20 research and development has led to numerous innovative products in the network security market. 21 The United States Patent and Trademark Office has recognized Fortinets achievements by 22 awarding numerous patents to Fortinet and its inventors as a result of these innovations. 23 13. Fortinet has likewise expended substantial resources in recruiting, hiring, training

24 and retaining its personnel. 25 14. On information and belief, Sophos competes with Fortinet in the network security

26 industry. 27 28 3
COMPLAINT

1 2 15.

Michael Valentines Tenure At Fortinet For a period of almost six yearsfrom May 2007 until February 2013Valentine

3 served as an officer and senior executive at Fortinet. His title at Fortinet was Vice President 4 Americas Sales and Support. (Fortinet does not have any Senior or Executive Vice 5 Presidents.) Valentine occupied the highest possible executive management position for a sales 6 and service function at Fortinet. 7 16. Valentine was one of the highest ranking officers and executives at Fortinet.

8 Fortinet maintained a public profile for Valentine on its public web site, identifying Valentine as a 9 key member of Fortinets Executive Management. 10 17. Valentine reported directly to Fortinets Founder, Chairman of the Board and CEO.

11 Valentine met with the board of directors of Fortinet in his capacity as a senior executive of the 12 company. Valentine was responsible for supervising a large team of sales and support employees 13 of Fortinet, both domestically and internationally. 14 18. While Valentine served as an officer and senior executive of Fortinet, he was

15 provided substantial compensation by Fortinet. 16 19. Valentines duties at Fortinet from 2007 to 2013 have recently been described by

17 Valentine and/or Sophos on the public web site for Sophos as follows: 18 19 20 21 22 23 24 25 26 27 28 4
COMPLAINT

. . . With more than twenty years of senior sales and channel experience at global IT security companies, Michael most recently served as vice president, Americas sales and support at Fortinet. In this role, he oversaw all facets of the companys network security offeringsVPN, UTM, web filter, security softwareand business development across North America, Latin America and Australia/New Zealand, helping to increase corporate revenues by nearly 40 percent. He guided Fortinets multi-national sales team through the companys successful IPO and played a major role in the integration of two acquired companies sales teams. During his tenure, he also expanded the companys network of North America technology distributors, signed more than 700 new Americas partners and grew the internal channel team by more than 80 percent, ultimately helping the company grow from $200 million to over $500 million in worldwide annual revenue. He is a recognized and respected sales executive who in 2008 and 2009 was named a top Channel Chief by CRN magazine. . . .

1 (See http://www.sophos.com/en-us/company/management/michael-valentine.aspx, last visited 2 December 16, 2013, emphasis added.) 3 20. When Valentine began his duties at Fortinet, in exchange for good and valuable

4 consideration, he chose to execute a written agreement (Agreement) with Fortinet. Valentine 5 chose to sign the Agreement on May 21, 2007. A copy of the Agreement, signed by Valentine, is 6 attached hereto as Exhibit A. 7 21. In executing the Agreement on May 21, 2007, Valentine agreed to a clause with the

8 title Solicitation of Employees. Valentine agreed as follows: 9 10 11 12 I agree that for a period of twelve (12) months immediately following the termination of my relationship with the Company for any reason, whether voluntary or involuntary, with or without cause, I shall not either directly or indirectly solicit any of the Companys employees to leave their employment, or attempt to solicit employees of the Company, either for myself or for any other person or entity.

13 (See Exhibit A at 8, emphasis added.) 14 22. In executing the Agreement on May 21, 2007, Valentine also agreed to a clause

15 with the title Termination Certification. Valentine agreed as follows: 16 17 18 19 Upon separation from employment with the Company, I agree to immediately sign and deliver to the Company the Termination Certification attached hereto as Exhibit C. I also agree to keep the Company advised of my home and business address for a period of three (3) years after termination of my employment with the Company, so that the Company can contact me regarding my continuing obligations provided by this Agreement.

20 (See Exhibit A at 6, emphasis added.) 21 22 23. 24. Valentine chose to leave Fortinet in February 2013. When Valentine chose to leave Fortinet in February 2013, he abided by the

23 requirement in the Agreement that he execute a Termination Certification (Certification). 24 Valentine signed his Certification on February 25, 2013. A copy of the Certification, signed by 25 Valentine, is attached hereto as Exhibit B. 26 25. In signing the Certification, Valentine confirmed that he was bound by the

27 Agreement. He indicated that he was leaving Fortinet to become the SVP WW Sales at 28 Sophos. He also reiterated his promise not to solicit any Fortinet employees to leave Fortinet 5
COMPLAINT

1 for a period of 12 months following his own termination at Fortinet. 2 Certification: 3 4 5 6 (See Exhibit B.) 7 Valentine and Sophos Raid Fortinets Employees 8 26. 9 February 2013. 10 27. 11 12

From Valentines

I also agree that for twelve (12) months from this date, I will not directly or indirectly solicit, induce, recruit or encourage any of the Companys employees to leave their employment . . . . After leaving the Companys employment, I would be employed by __SOPHOS__ in the position of: __SVP WW Sales__.

Valentine joined Sophos as the Senior Vice President, Worldwide Sales in

Valentine and Sophostogether and through the conduct of Valentine, at the

intentional direction and/or encouragement and/or request of Sophosviolated Valentines contractual and other lawful duties to Fortinet by attempting to solicit and induce numerous 13 Fortinet employees to leave Fortinet. 14 occurred both before and after Valentine resigned from Fortinet. 15 28. 16 includingas examplesthe following. 17 29. 18 numerous important Fortinet employees, including senior executives, in fact departed Fortinet for 19 Sophos at the inducement of Valentine and Sophos. 20 30. 21 Sophos in April 2013. At Sophos, KK was given the title Vice President, Channel Sales, North 22 America. KKs LinkedIn profile indicates that she conducts business on behalf of Sophos 23 physically based out of the Greater Chicago Area. 24 31. 25 left Fortinet for Sophos in April 2013. 26 Distribution, North America. RGs LinkedIn profile indicates he conducts business on behalf 27 of Sophos physically based out of Orange County, California. 28 6
COMPLAINT

On information and belief, this unlawful solicitation

Valentines unlawful solicitation activities are evidenced by numerous facts,

In April 2013just two months after Valentine left Fortinet for Sophos

Fortinets Vice President of Channel Sales (hereafter, KK), left Fortinet for

Fortinets Vice President of Distribution for North America (hereafter, RG), also At Sophos, RG was given the title Director of

32.

A Distribution Account Manager at Fortinet (hereafter, CB) also left Fortinet

2 for Sophos in April 2013. At Sophos, CB was given the title Channel Account Executive. CBs 3 LinkedIn profile indicates that he conducts business on behalf of Sophos physically based out of 4 the Greater Denver Area. 5 33. Fortinets Director, Central Region Channel Sales (hereafter, DD) left Fortinet

6 for Sophos in October 2013. At Sophos, DD was given the title Director of Central Region 7 Channel Sales. DDs LinkedIn profile indicates that he conducts business on behalf of Sophos 8 physically based out of the Dallas/Fort Worth Area. 9 34. Not coincidentally, KK, RG, and CB all resigned from Fortinetto join Valentine

10 and to accept jobs at Sophosin the exact same week of April 2013. Those three employees 11 resigned from Fortinet just a few days shy of two months after Valentine left Fortinet. 12 35. Fortinets Vice President Systems Engineering (hereafter, JC) left Fortinet for

13 Sophos in November 2013. At Sophos, JC was given the title Director of Sales Engineering. 14 On information and belief, this followed an in-person meal and/or meeting between JC, Valentine, 15 and KK in approximately August 2013. 16 36. On information and belief, Valentine and Sophos solicited numerous Fortinet

17 employees to leave Fortinet less than 12 months after Valentine left the company. Valentine and 18 Sophos did this to damage Fortinet, to diminish Fortinets position in the marketplace, and to 19 unfairly enhance their own positions. 20 37. On information and belief, Valentine and Sophos furthermore induced other former

21 Fortinet employees to violate their Agreement with Fortinet by inducing them to solicit other 22 Fortinet employees to leave the company. KK, RG, CB, and DD all signed an Agreementjust as 23 Valentine didrequiring them as a contractual matter not to solicit other employees to leave 24 Fortinet within 12 months of their employment at Fortinet. And yet, on information and belief, 25 KK, RG, CB, and/or DD have solicited Fortinet employees (including each other) to leave the 26 employment of Fortinet. 27 28 7
COMPLAINT

1 2 3 38.

COUNT NO. I (Against Sophos) INFRINGEMENT OF U.S. PATENT NO. 7,698,744 Fortinet realleges and incorporates herein by reference the allegations contained in

4 paragraphs 137. 5 39. United States Patent No. 7,698,744 (the 744 patent), titled SECURE SYSTEM

6 FOR ALLOWING THE EXECUTION OF AUTHORIZED COMPUTER PROGRAM CODE, 7 issued on April 13, 2010. A true and correct copy of the 744 patent is attached as Exhibit C to 8 this Complaint. 9 40. Fortinet owns all right, title, and interest in and to the 744 patent, including all

10 rights to enforce the 744 patent. 11 41. On information and belief, without a license or permission from Fortinet, Sophos

12 has infringed and continues to infringe, induced others to infringe and continues to induce others 13 to infringe, and/or has committed and continues to commit acts of contributory infringement, 14 literally or under the doctrine of equivalents, of one or more claims of the 744 patent, including at 15 least claim 8 of the 744 patent. Sophos infringing activities in the United States and in this 16 District include importing, making, using, offering to sell, and/or selling products and devices that 17 embody and/or practice the patented invention, including but not limited to Sophos Anti-Virus 18 software which, on information and belief, is incorporated into, sold with, and/or used with 19 infringing products marketed and/or sold under the names Sophos Enduser Protection Suites, 20 Sophos Endpoint Security and Control, Sophos Endpoint Anti-Virus, Sophos Cloud, and other 21 Sophos products, and contributing to, and inducing consumers and users to make and use the 22 patented invention and to practice the claimed methods. 23 42. Specifically, on information and belief, Sophos induces others, including its

24 customers and end-users, to infringe at least claim 8 of the 744 patent by encouraging and 25 facilitating them to perform actions known by Sophos to infringe and with the intent that 26 performance of the actions will infringe. Sophos has been aware of the 744 patent since at least 27 the filing of this complaint. 28 8
COMPLAINT

43.

On information and belief, Sophos induces consumers, including its customers and

2 end-users, to make and use the claimed inventions and to practice the claimed methods by (i) 3 providing Sophos Anti-Virus software and (ii) instructing consumers to use Sophos Anti-Virus 4 software along with, inter alia, its anti-virus capabilities and in conjunction with Sophos Cloud 5 and/or SophosLabs such that the combination as intended practices each of the elements of at least 6 claim 8 of the 744 patent. 7 44. On information and belief, consumers make and use the claimed inventions and

8 practice the claimed methods by using Sophos products, including but not limited to those 9 identified above, that incorporate Sophos Anti-Virus software along with Sophos Cloud and/or 10 SophosLabs, thereby directly infringing at least claim 8 of the 744 patent. 11 45. Sophos also contributes to the infringement of the 744 patent because Sophos

12 knows that its products are made for use in an infringing manner and are not staple articles of 13 commerce suitable for substantial non-infringing uses. Sophos products, including those

14 enumerated above, which it sells directly to consumers as well as through its distribution partners, 15 are designed to be used (and are used by consumers and end-users) in an infringing manner. 16 Additionally, on information and belief, Sophos products, including those identified above, are 17 especially designed, made, or adapted for use in an infringing manner. Sophos products have no 18 substantial non-infringing uses and are material to the claimed inventions. 19 46. On information and belief, Sophos direct, induced, and/or contributory

20 infringement of the 744 patent has caused and continues to cause substantial damage to Fortinet. 21 22 23 47. COUNT NO. II (Against Sophos) INFRINGEMENT OF U.S. PATENT NO. 8,069,487 Fortinet realleges and incorporates herein by reference the allegations contained in

24 paragraphs 146. 25 48. United States Patent No. 8,069,487 (the 487 patent), titled CLOUD-BASED A true and correct copy of

26 APPLICATION WHITELISTING, issued on November 29, 2011. 27 the 487 patent is attached as Exhibit D to this Complaint. 28 9
COMPLAINT

49.

Fortinet owns all right, title, and interest in and to the 487 patent, including all

2 rights to enforce the 487 patent. 3 50. On information and belief, without a license or permission from Fortinet, Sophos

4 has infringed and continues to infringe, induced others to infringe and continues to induce others 5 to infringe, and/or has committed and continues to commit acts of contributory infringement, 6 literally or under the doctrine of equivalents, of one or more claims of the 487 patent, including at 7 least claim 24 of the 487 patent. Sophos infringing activities in the United States and in this 8 District include importing, making, using, offering to sell, and/or selling products and devices that 9 embody and/or practice the patented invention, including but not limited to Sophos Anti-Virus 10 software which, on information and belief, is incorporated into, sold with, and/or used with 11 infringing products marketed and/or sold under the names Sophos Enduser Protection Suites, 12 Sophos Endpoint Security and Control, Sophos Endpoint Anti-Virus, Sophos Cloud, among other 13 Sophos products, and contributing to, and inducing consumers and users to make and use the 14 patented invention and to practice the claimed methods. 15 51. Specifically, on information and belief, Sophos induces others, including its

16 customers and end-users, to infringe at least claim 24 of the 487 patent by encouraging and 17 facilitating them to perform actions known by Sophos to infringe and with the intent that 18 performance of the actions will infringe. Sophos has been aware of the 487 patent since at least 19 the filing of this complaint. 20 52. On information and belief, Sophos induces consumers, including its customers and

21 end-users, to make and use the claimed inventions and to practice the claimed methods by (i) 22 providing Sophos Anti-Virus software and (ii) instructing consumers to use Sophos Anti-Virus 23 software along with, inter alia, its anti-virus capabilities and in conjunction with Sophos Cloud 24 and/or SophosLabs such that the combination as intended practices each of the elements of at least 25 claim 24 of the 487 patent. 26 53. On information and belief, consumers make and use the claimed inventions and

27 practice the claimed methods by using Sophos products, including but not limited to those 28 10
COMPLAINT

1 identified above, that incorporate Sophos Anti-Virus software along with Sophos Cloud and/or 2 SophosLabs, thereby directly infringing at least claim 24 of the 487 patent. 3 54. Sophos also contributes to the infringement of the 487 patent because Sophos

4 knows that its products are made for use in an infringing manner and are not staple articles of 5 commerce suitable for substantial non-infringing uses. Sophos products, including those

6 enumerated above, which it sells directly to consumers as well as through its distribution partners, 7 are designed to be used (and are used by consumers and end-users) in an infringing manner. 8 Additionally, on information and belief, Sophos products, including those identified above, are 9 especially designed, made, or adapted for use in an infringing manner. Sophos products have no 10 substantial non-infringing uses and are material to the claimed inventions. 11 55. On information and belief, Sophos direct, induced and/or contributory

12 infringement of the 487 patent has caused and continues to cause substantial damage to Fortinet. 13 14 15 56. COUNT NO. III (Against Sophos) INFRINGEMENT OF U.S. PATENT NO. 8,195,938 Fortinet realleges and incorporates herein by reference the allegations contained in

16 paragraphs 155. 17 57. United States Patent No. 8,195,938 (the 938 patent), titled CLOUD-BASED

18 APPLICATION WHITELISTING, issued on June 5, 2012. A true and correct copy of the 938 19 patent is attached as Exhibit E to this Complaint. 20 58. Fortinet owns all right, title, and interest in and to the 938 patent, including all

21 rights to enforce the 938 patent. 22 59. On information and belief, without a license or permission from Fortinet, Sophos

23 has infringed and continues to infringe, induced others to infringe and continues to induce others 24 to infringe, and/or has committed and continues to commit acts of contributory infringement, 25 literally or under the doctrine of equivalents, of one or more claims of the 938 patent, including at 26 least claim 30 of the 938 patent. Sophos infringing activities in the United States and in this 27 District include importing, making, using, offering to sell, and/or selling products and devices that 28 embody and/or practice the patented invention, including but not limited to Sophos Anti-Virus 11
COMPLAINT

1 software which, on information and belief, is incorporated into, sold with, and/or used with 2 infringing products marketed and/or sold under the names Sophos Enduser Protection Suites, 3 Sophos Endpoint Security and Control, Sophos Endpoint Anti-Virus, Sophos Cloud, among other 4 Sophos products, and contributing to, and inducing consumers and users to make and use the 5 patented invention and to practice the claimed methods. 6 60. Specifically, on information and belief, Sophos induces others, including its

7 customers and end-users, to infringe at least claim 30 of the 938 patent by encouraging and 8 facilitating them to perform actions known by Sophos to infringe and with the intent that 9 performance of the actions will infringe. Sophos has been aware of the 938 patent since at least 10 the filing of this complaint. 11 61. On information and belief, Sophos induces consumers, including its customers and

12 end-users, to make and use the claimed inventions and to practice the claimed methods by (i) 13 providing Sophos Anti-Virus software and (ii) instructing consumers to use Sophos Anti-Virus 14 software along with, inter alia, its anti-virus capabilities and in conjunction with Sophos Cloud 15 and/or SophosLabs such that the combination as intended practices each of the elements of at least 16 claim 30 of the 938 patent. 17 62. On information and belief, consumers make and use the claimed inventions and

18 practice the claimed methods by using Sophos products, including but not limited to those 19 identified above, that incorporate Sophos Anti-Virus software along with Sophos Cloud and/or 20 SophosLabs, thereby directly infringing at least claim 30 of the 938 patent. 21 63. Sophos also contributes to the infringement of the 938 patent because Sophos

22 knows that its products are made for use in an infringing manner and are not staple articles of 23 commerce suitable for substantial non-infringing uses. Sophos products, including those

24 enumerated above, which it sells directly to consumers as well as through its distribution partners, 25 are designed to be used (and are used by consumers and end-users) in an infringing manner. 26 Additionally, on information and belief, Sophos products, including those identified above, are 27 especially designed, made, or adapted for use in an infringing manner. Sophos products have no 28 substantial non-infringing uses and are material to the claimed inventions. 12
COMPLAINT

64.

On information and belief, Sophos direct, induced, and/or contributory

2 infringement of the 938 patent has caused and continues to cause substantial damage to Fortinet. 3 4 5 65. COUNT NO. IV (Against Valentine) BREACH OF CONTRACT Fortinet realleges and incorporates herein by reference the allegations contained in

6 paragraphs 164. 7 8 66. 67. Fortinet and Valentine entered into a contract, described herein as the Agreement. Fortinet did all, or substantially all, of the significant things that the Agreement

9 required it to do, and/or that Fortinet was excused from doing those things based on Valentines 10 breaches of the Agreement. 11 68. All conditions required by the Agreement for Valentines performance occurred

12 and/or were excused. 13 69. Valentine breached the Agreement by soliciting, directly and indirectly, and

14 attempting to solicit numerous Fortinet employees to leave Fortinet within 12 months of less of 15 Valentines termination from Fortinet. 16 17 70. 71. Fortinet was harmed by this breach in an amount to be proven at trial. Fortinet has been and will be harmed irreparably as a result of Valentines

18 continued violations of the Agreement, unless that conduct is enjoined by this Court. 19 20 21 72. COUNT NO. V (Against Sophos & Valentine) INTENTIONAL INTERFERENCE WITH CONTRACT Fortinet realleges and incorporates herein by reference the allegations contained in

22 paragraphs 171. 23 73. Fortinet entered into the Agreementa valid contractwith Valentine, pursuant to

24 which Valentine agreed not to solicit Fortinet employees to leave Fortinet during a reasonable 25 period of time. Likewise, KK, RG, CB, and DD all signed the Agreement with Fortinet or a 26 document substantially identical to the Agreement. 27 74. Upon information and belief, Sophos became aware of Valentines Agreement no

28 later than Valentines decision to accept an offer of employment from Sophos, in or before 13
COMPLAINT

1 February 2013. Sophos likewise became aware of the Agreement between Fortinet and KK, RG, 2 CB, and DD at the same time. 3 75. Valentine was aware of the Agreement between Fortinet and KK, RG, CB, and DD

4 well before 2013. 5 76. Upon information and belief, Sophos intentionally induced Valentine to breach the

6 Agreement by inducing him to solicit Fortinet employees to leave Fortinet, including KK, RG, 7 CB, DD, and/or JC, both before and shortly after (and less than 12 months from the date that) 8 Valentine terminated his employment with Fortinet. 9 77. Upon information and belief, both Sophos and Valentine intentionally induced

10 numerous individuals to breach their Agreement with Fortinetincluding KK, RG, CB, DD, 11 and/or JCby inducing them to solicit Fortinet employees to leave Fortinet shortly after (and less 12 than 12 months from the date that) those employees terminated their employment with Fortinet. 13 78. Upon information and belief, Sophos induced Valentine to breach the Agreement

14 by inducing him to solicit Fortinet employees to leave Fortinet, including while those employees 15 were still employed by Fortinet. 16 79. Upon information and belief, Sophos and Valentine induced numerous former

17 Fortinet employeesincluding KK, RG, CB, DD and/or JCto breach the Agreement by 18 inducing them to solicit Fortinet employees to leave Fortinet, including while those employees 19 were still employed by Fortinet. 20 80. Sophos engaged in wrongful conduct by intentionally disrupting Valentines

21 performance of, and by inducing his breaches of, the Agreement. 22 81. Sophos and Valentine engaged in wrongful conduct by intentionally disrupting the

23 performance of, and by inducing breaches of, the Agreement between Fortinet and numerous 24 former Fortinet employees. 25 82. The actions of Sophos and Valentine identified in this pleading were done with the

26 intention of disrupting the contractual relationships between Fortinet and Valentine, and between 27 Fortinet and numerous other Fortinet employees. 28 14
COMPLAINT

83.

The actions of Sophos and Valentine identified in this complaint resulted in

2 numerous breaches of the Agreement by Valentine and other former Fortinet employees. 3 84. As an actual and proximate result of Sophos and Valentines conduct, Fortinet has

4 been damaged in the amount to be proven at trial. 5 6 harm. 7 86. In performing the acts described above, Sophos and Valentine acted willfully, 85. Sophos and Valentines conduct was a substantial factor in causing Fortinets

8 maliciously, oppressively, with the intent to interfere with Fortinets contractual interests and with 9 conscious disregard for Fortinets rights and the damages it would suffer thereby. 10 11 87. DEMAND FOR JURY TRIAL Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Fortinet demands a

12 jury trial on all triable issues. 13 14 15 PRAYER FOR RELIEF WHEREFORE, Fortinet prays for judgment and relief as follows: A. A declaration that the Asserted Patents are valid and enforceable, and that Sophos

16 has infringed and continues to infringe one or more claims of the Asserted Patents; 17 B. A preliminary and/or permanent injunction enjoining Sophos, its directors, officers,

18 agents, and employees, and those acting in privity or in concert with them, and their partners, 19 subsidiaries, divisions, successors, and assigns, from further acts of (i) interference with Fortinet 20 contractual benefits, and (ii) infringement, contributory infringement, or inducement of 21 infringement of the Asserted Patents; 22 C. An award of damages adequate to compensate Fortinet for Sophos infringement,

23 in accordance with 35 U.S.C. 284, including all pre-judgment and post-judgment interest and 24 costs; 25 D. Increasing the damages to three times the amount found or assessed by virtue of the

26 deliberate and willful nature of Sophos infringement, in accordance with 35 U.S.C. 284; 27 E. A judgment that this is an exceptional case and that Fortinet be awarded attorneys

28 fees under 35 U.S.C. 285; 15


COMPLAINT

F.

A judgment that Fortinet be awarded damages as a result of Sophos intentional

2 interference with Fortinets contracts; 3 G. A judgment that Fortinet be awarded damages as a result of Valentines intentional

4 interference with Fortinets contracts; 5 H. A judgment that Fortinet be awarded damages as a result of Valentines breach of

6 contract; 7 I. A judgment that Fortinet be awarded pre-judgment and post-judgment interest on

8 any award; and 9 10 11 Dated: December 16, 2013 12 By: /s/John M. Neukom 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16
COMPLAINT

J.

That the Court award Fortinet any other relief as the Court deems just and proper.

Respectfully submitted,

JOHN M. NEUKOM (CA Bar No. 275887) johnneukom@quinnemanuel.com QUINN EMANUEL URQUHART & SULLIVAN, LLP 50 California Street, 22nd Floor San Francisco, California 94111 Telephone: (415) 875-6600 Facsimile: (415) 875-6700 Attorneys for Plaintiff FORTINET, INC.

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